Prepared by, recording requested by,
and after recording, return to:
Hunter, Maclean, Xxxxx & Xxxx, P.C.
000 Xxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
MetLife Capital Financial Corporation
Loan Number: 5908795-001
MORTAGE SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
(600 Creek Road, Delanco, New Jersey)
THIS MORTGAGE (herein "Instrument"), made as of October 31, 1995, among the
Mortgagor, JEVIC TRANSPORTATION, INC., a New Jersey corporation, whose mailing
address is 000 Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (herein "Borrower"), in
favor of the Mortgagee, METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware
corporation, whose mailing address is Real Estate Department, 10900 X.X. 0xx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (herein "METLIFE"),
W I T N E S S E T H :
THAT, WHEREAS, Borrower is justly indebted to METLIFE in the sum of Five
Million Six Hundred Twenty-Five Thousand and no hundredths Dollars
($5,625,000.00), as evidenced by a certain Note (aa hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing, and. for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower irrevocably mortgages to METLIFE all of Borrower's right,
title and interest, now owned or hereafter acquired, including any reversion or
remainder interest, in the real property located in the Township of Delanco,
County of Burlington, State of New Jersey, commonly known as 000 Xxxxx Xxxx, and
more particularly described on Exhibit A attached hereto and incorporated herein
including all heretofore or hereafter alleys and streets abutting the property,
and all easements, rights, appurtenances, tenements, hereditaments, rents,
royalties, mineral, oil and gee rights and profits, water, water rights, and
water stock appurtenant to the property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and interest, now
owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas, landscaping,,
and fixtures now or hereafter erected on, attached to, or used or adapted for
use in the operation of the Premises; including but without being limited to,
all heating, air conditioning and incinerating apparatus and equipment; all
boilers, engines, motors, dynamos, generating equipment, piping and plumbing
fixtures, water heaters, ranges, cooking apparatus and mechanical kitchen
equipment, refrigerators, freezers, cooling, ventilating, sprinkling and vacuum
cleaning systems, fire extinguishing apparatus, gas and electric fixtures,
carpeting, floor coverings, underpadding, elevators, escalators, partitions,
mantels, built-in mirrors, window shades, blinds, draperies, screens, storm
sash, awnings, signs, furnishings of public spaces, halls and lobbies, and
shrubbery and plants, and including also all interest of any owner of the
Premises in any of such items hereafter at any time acquired under conditional
sale contract, chattel mortgage or other title retaining or security instrument,
all of which property mentioned in this clause (a) shall be deemed part of the
realty covered by this Instrument and not severable wholly or in part without
material injury to the freehold of the Premises (all of the foregoing together
with replacements and additions thereto are referred to herein as
("Improvements"); and
(b) all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (inclouding change of grade), sale or transfer in lieu
of condemnation, or fire, earthquake or other casualty, or (ii) any injury to or
decrease in the value of the Improvements for any reason whatsoever;
(c) return premiums or other payments upon any insurance any time provided
for the benefit of or naming METLIFE, and refunds or rebates of taxes or
assesments on the Premises;
(d) all the right, title and interest of Borrower in, to and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein aa
the "Leases"), if any, now or hereafter affecting the Premises including,
without limitation, all rents, issues, profits and other revenues and income
from the renting, leasing or bailment of improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding;
(e) plans, specifications, contracts and agreements relating to the design
or construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and
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construction materials, supplies, and equipment used or to be used or consumed
in connection with construction of the Improvements, whether stored on the
Premises or at some other location; and contracts, agreements, and purchase
orders with contractors, subcontractors, suppliers, and materialmen incidental
to the design or construction of the Improvements;
(f) all contracts, accounts,_ rights claims or causes of action pertaining
solely to the ownership of the Premises or the Improvements, including, without
limitation, all options or contracts to acquire other property for use in
connection with operation or development of the Premises or Improvements,
management contracts, service or supply contracts, permits and licenses to use
and/or occupy the Premises or the Improvements;
(g) all books, records, surveys, reports and other documents related solely
to the ownership and/or operation of the Premises, the Improvements, or the
Leases; and
(h) all additions, accessions, replacements, substitutions, proceeds and
products of any of the foregoing.
METLIFE does not claim any interest in, and the term Property shall not
include, Borrower's telephone communications or other office equipment,
forklifts, tractors, trailers, vehicles, rolling stock, equipment leases not
financed through METLIFE, accounts, deposits, receivables, general intangibles,
or the proceeds (including but not limited to insurance proceeds) of any of the
foregoing. The Premises, the Improvements, the Leases and all of the rest of the
foregoing property are herein referred to as the "Property."
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof to the use, benefit and behoof of METLIFE and its
successors and assigns in fee simple forever.
TO SECURE TO METLIFE (a) the repayment of the indebtedness evidenced by
Borrower's note dated of even date herewith in the principal sum of Five Million
Six Hundred Twenty-Five Thousand and no hundredths Dollars ($5,625,000.00), with
interest thereon as set forth in the note, and all renewals, extensions and
modifications thereof (herein "Note"); (b) the repayment of any future advances,
with interest thereon, made by METLIFE to Borrower pursuant to Section 28 hereof
(herein "Future Advances"); (c) the payment of all other sums, with interest
thereon, advanced in accordance herewith to protect the security of this
Instrument or to fulfill any of Borrower's obligations hereunder or under the
other Loan Documents (as defined below); and (d) the performance of the
covenants and agreements of Borrower contained herein or in the other Loan
Documents. The indebtedness and obligations described in clauses (a)- (d) above
are collectively referred to herein as the "Indebtedness." The Note, this
Instrument, and all other documents evidencing, securing or guaranteeing the
Indebtedness (except any Certificate and Indemnity Agreement Regarding Hazardous
Substances), as the same may be modified or amended from time to time, are
referred to herein as the "Loan Documents." The terms of the Note secured hereby
may provide that the
3
interest rate or payment terms or balance due may be indexed, adjusted, renewed,
or renegotiated from time to time, and this Instrument shall continue to secure
the Note notwithstanding any such indexing, adjustment, renewal or
renegotiation.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to mortgage an indefeasible fee simple
estate in, the Premises, Improvements, rents, and leases, and the right to
convey the other Property, that the Property is unencumbered except as disclosed
in writing to and approved by METLIFE prior to the date hereof, and that
Borrower will warrant and forever defend the title to the Property against all
claims and demands, subject only to the permitted exceptions set forth in
Schedule 1 attached hereto.
Borrower represents, warrants, covenants and agrees for the benefit of
METLIFE as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when due
the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this
Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Upon the occurrence of an
Event of Default (hereinafter defined), and at METLIFE's sole option at any time
thereafter, Borrower shall pay in addition to each monthly payment on the Note,
one-twelfth of the annual real estate taxes, insurance premiums, assessments,
water and sewer rates, and other charges (herein "Impositions") payable with
respect to the Property (as estimated by METLIFE in its reasonable discretion),
to be held by METLIFE without interest to Borrower, for the payment of such
obligations.
If the amount of such additional payments held by METLIFE ("Funds") at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by METLIFE to provide for the payment of Impositions as they fall due, such
excess shall be at Borrower's option, either repaid to Borrower or credited to
Borrower on the next monthly installment or installments of Funds due. If at any
time the amount of the Funds held by METLIFE shall be less than the amount
deemed necessary by METLIFE to pay Impositions as they fall due, Borrower shall
pay to METLIFE any amount necessary to make up the deficiency within thirty (30)
days after notice from METLIFE to Borrower requesting payment thereof.
Upon the occurrence of an Event of Default (as hereinafter defined),
METLIFE may apply, in any amount and in any order as METLIFE shall determine in
METLIFE's sole discretion, any Funds held by METLIFE at the time of application
(i) to pay Impositions which are now or will hereafter become due, or (ii) as a
credit against sums secured by this Instrument. Upon payment in full of all sums
secured by this Instrument, METLIFE shall refund to Borrower any Funds held by
METLIFE.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise, each
complete installment payment received by METLIFE from Borrower under the Note or
this Instrument shall be applied by METLIFE
4
first in payment of amounts payable to METLIFE by Borrower under Section 2
hereof, if any, then to interest payable on the Note, then to principal of the
Note, and then to interest and principal on any Future Advances in such order as
METLIFE, at METLIFE's sole discretion, shall determine. Upon the occurrence of
an Event of Default, METLIFE may apply, in any amount and in any order as
METLIFE shall determine in METLIFE's sole discretion, any payments received by
METLIFE under the Note or this Instrument. Any partial payment received by
METLIFE shall, at METLIFE's option, be held in a non-interest bearing account
until METLIFE receives funds sufficient to equal a complete installment payment.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to the
Property in the manner provided under Section 2 hereof or, if not paid in such
manner, by Borrower making payment, when due, directly to the payee thereof, or
in such other manner as METLIFE may designate in writing. If requested by
METLIFE, Borrower shall promptly furnish to METLIFE all notices of Impositions
which become due, and in the event Borrower shall make payment directly,
Borrower shall promptly furnish to METLIFE receipts evidencing such payments.
Borrower shall promptly discharge any lien which has, or may have, priority over
or equality with, the lien of this Instrument, and Borrower shall pay, when due,
the claims of all persons supplying labor or materials to or in connection with
the Property. Without METLIFE's prior written permission, Borrower shall not
allow any lien inferior to this Instrument to be perfected against the Property.
If any lien inferior to this Instrument is filed against the Property without
METLIFE's prior written permission and without the consent of Borrower, Borrower
shall, within thirty (30) days after receiving notice of the filing of such
lien, cause such lien to be released of record and deliver evidence of such
release to METLIFE.
5. INSURANCE. Borrower shall obtain and maintain the following types of
insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not
less than the full replacement value of the Property (with a deductible not
to exceed $5,000 and with co- insurance limited to a maximum of 10% of the
amount of the policy naming METLIFE under a lender's loss payee endorsement
(form 438BFU or equivalent) and including agreed amount, inflation guard,
replacement cost and waiver of subrogation endorsements;
(b) Comprehensive general liability insurance in an amount not less
than $2,000,000.00 insuring against personal injury, death and property
damage and naming METLIFE additional insured;
(c) Business interruption insurance covering loss of rental or other
income (including all expenses payable by tenants) in an amount sufficient
to pay all sums due under this Instrument for up to six (6) months; and
(d) Such other types of insurance or endorsements to existing
insurance as may be reasonably required from time to time by METLIFE.
5
Upon the reasonable request of METLIFE, Borrower shall increase the
coverages under any of the insurance policies required to be maintained
hereunder or otherwise modify such policies in accordance with METLIFE's
request. All of the insurance policies required hereunder shall be issued by
corporate insurers licensed to do business in the state in which the Property is
located and rated A:X or better by A.M. Best Company, and shall be in form
reasonably acceptable to METLIFE. If and to the extent that the Property is
located within an area that has been or is hereafter designated or identified as
an area having special flood hazards by the Department of Housing and Urban
Development or such other official as shall from time to time be authorized by
federal or state law to make such designation pursuant to any national or state
program of flood insurance, Borrower shall carry flood insurance with respect to
the Property in amounts not less than the maximum limit of coverage then
available with respect to the Property or the amount of the Indebtedness,
whichever is less. Certificates of all insurance required to be maintained
hereunder shall be delivered to METLIFE, along with evidence of payment in full
of all premiums required thereunder, contemporaneously with Borrower's execution
of this Instrument. All such certificates shall be in form acceptable to METLIFE
and shall require the insurance company to give to METLIFE at least thirty (30)
days' prior written notice before canceling the policy for any reason or
materially amending it. Certificates evidencing all renewal and substitute
policies of insurance shall be delivered to METLIFE, along with evidence of the
payment in full of all premiums required thereunder, at least fifteen (15) days
before termination of the policies being renewed or substituted. If any loss
shall occur at any time when an Event of Default shall have occurred and be
continuing, METLIFE shall be entitled to the benefit of all insurance policies
held or maintained by Borrower, to the same extent as if same had been made
payable to METLIFE, and upon foreclosure hereunder, METLIFE shall become the
owner thereof. METLIFE shall have the right, but not the obligation, to make
premium payments, at Borrower's expense, to prevent any cancellation,
endorsement, alteration or reissuance of any policy of insurance maintained by
Borrower, and such payments shall be accepted by the insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to METLIFE. All insurance proceeds paid or
payable in connection with any Loss shall be paid to METLIFE. If (i) no Event of
Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to METLIFE of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, and (iii) the available insurance proceeds are, in
METLIFE's judgment, sufficient to fully and completely restore, repair or
replace the Property, Borrower shall have the right to apply all insurance
proceeds received in connection with such Loss either (a) to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition
and character immediately prior to such Loss, or (b) to the payment of the
Indebtedness in such order as METLIFE may elect. If an Event of Default has
occurred and is continuing hereunder
6
at the time of such Loss, if METLIFE determines that Borrower will be unable to
pay all amounts becoming due under the Note during the pendency of any
restoration or repairs to or replacement of the Property, if the available
insurance proceeds are insufficient, in METLIFE's judgment, to fully and
completely restore, repair or replace the Property or if METLIFE believes that
one or more tenants (if any) of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement of
the Property, then all of the insurance proceeds payable with respect to such
Loss will be applied to the payment of the Indebtedness, or if so instructed by
METLIFE, Borrower will promptly, at Borrower's sole cost and expense and
regardless of whether sufficient insurance proceeds shall be available, commence
to restore, repair, replace and rebuild the Property as nearly as possible to
its value, condition, character immediately prior to such Loss. Borrower shall
diligently prosecute any restoration, repairs or replacement of the Property
undertaken by or on behalf of Borrower pursuant to this Section 5. All such work
shall be conducted pursuant to written contracts approved by METLIFE in writing.
Notwithstanding anything contained herein to the contrary, in the event the
insurance proceeds received by METLIFE following any Loss are insufficient in
METLIFE's judgment to fully and completely restore, repair or replace the
Property to its condition and character as it existed immediately prior to such
Loss, and if Borrower has complied with all of the other conditions described in
this Section 5, Borrower may elect to restore, repair or replace the Property if
it first deposits with METLIFE such additional sums as METLIFE determines are
necessary in order to fully and completely restore, repair or replace the
Property to its condition and character as it existed immediately prior to such
Loss. In the event any insurance proceeds remain following the restoration,
repair or replacement of the Property, such proceeds shall be applied to the
Indebtedness in such order as METLIFE may elect.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not commit
waste or permit impairment or deterioration of the Property, (b) shall not
abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent (in value,
character) of its original condition, or such other condition as METLIFE may
approve in writing, in the event of any damage, injury or loss thereto, whether
or not insurance proceeds are available to cover in whole or in part the costs
of such restoration or repair, (d) shall keep the Property, including all
improvements, fixtures, equipment, machinery and appliances thereon, in good
repair and shall replace fixtures, equipment, machinery and appliances on the
Property when necessary to keep such items in good repair, (e) shall comply with
all laws, ordinances, regulations and requirements of any governmental body
applicable to the Property, (f) if all or part of the Property is for rent or
lease, then METLIFE, at its option after the occurrence of an Event of Default,
may require Borrower to provide for professional management of the Property by a
property manager satisfactory to METLIFE pursuant to a contract approved by
METLIFE in writing, unless such requirement shall be waived by METLIFE in
writing, (g) (if any part of the Property is let to a tenant or tenants) shall
generally operate and maintain the Property in a manner to ensure maximum
rentals, and (h) shall give notice in writing to METLIFE of and,
7
unless otherwise directed in writing by METLIFE, appear in and defend any action
or proceeding purporting to affect the Property, the security of this Instrument
or the rights or powers of METLIFE hereunder. Neither Borrower nor any tenant or
other person, without the written approval of METLIFE, shall remove, demolish or
alter any improvement now existing or hereafter erected on the Property or any
fixture, equipment, machinery or appliance in or on the Property except when
incident to the replacement of fixtures, equipment, machinery and appliances
with items of like kind.
Borrower represents, warrants and covenants that the Property is and shall
be in compliance with all applicable provisions of the Americans with
Disabilities Act of 1990 and all of the regulations promulgated thereunder, as
the same may be amended from time to time.
7. USE OF PROPERTY. Unless required by applicable law or unless METLIFE has
otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not, without METLIFE's prior written consent which
shall not be unreasonably withheld if Borrower shall have provided to METLIFE an
MAI appraisal showing that the value of the Property will not be decreased
thereby, (i) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the
Property), (ii) change the use of the Property to a non-conforming use under
applicable zoning ordinances, or (iii) file any subdivision or parcel map
affecting the Property. Borrower shall not, without METLIFE'S prior written
consent which shall not be unreasonably withheld if METLIFE is satisfied that
the value of the Property shall not be decreased thereby, amend, modify or
consent to any easement or covenants, conditions and restrictions pertaining to
the Property.
B. PROTECTION OF METLIFE'S SECURITY. If Borrower fails to perform any of
the covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of METLIFE therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then METLIFE at METLIFE's option may make such
appearances, disburse such sums and take such action as METLIFE deems necessary,
in its sole discretion, to protect METLIFE's interest, including, but not
limited to, (i) disbursement of attorneys' fees, (ii) entry upon the Property to
make repairs, and (iii) procurement of satisfactory insurance as provided in
Section 5 hereof.
Any amounts disbursed by METLIFE pursuant to this Section 8, with interest
thereon, shall become additional Indebtedness of Borrower secured by this
Instrument. Unless Borrower and METLIFE agree to other terms of payment, such
amounts shall be immediately due and payable and shall bear interest from the
date of disbursement at the rate stated in the Note as applicable after default.
Borrower hereby covenants and agrees that METLIFE shall be subrogated to the
lien of any mortgage or other lien discharged, in whole or in part, by the
Indebtedness. Nothing contained in this Section 8 shall require METLIFE to incur
any expense or take any action hereunder.
8
9. INSPECTION. METLIFE may make or cause to be made reasonable entries upon
the Property to inspect the interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to METLIFE, and will cause any
guarantor, if any, of the Indebtedness to furnish METLIFE on request, within one
hundred twenty (120) days after the close of its fiscal year (i) annual balance
sheet and profit and loss statements prepared in accordance with generally
accepted accounting principles and practices consistently applied and, if
METLIFE so requires, accompanied by the annual audit report of an independent
certified public accountant reasonably acceptable to METLIFE, (ii) an annual
operating statement, together with a complete rent roll (if applicable) and
other supporting data reflecting all material information with respect to the
operation of the Property and Improvements, and (iii) all other financial
information and reports that METLIFE may from time to time reasonably request,
including, if METLIFE so requires, income tax returns of Borrower.
11. CONDEMNATION. If the Property, or any part thereof, shall be condemned
for any reason or otherwise taken for public or quasi-public use under the power
of eminent domain, or be transferred in lieu thereof, all damages or other
amounts awarded for the taking of, or injury to, the Property shall be paid to
METLIFE who shall have the right, in its sole and absolute discretion, to apply
the amounts so received against (a) the costs and expenses of METLIFE, including
reasonable attorneys' fees incurred in connection with collection of such
amounts, and (b) the balance against the Indebtedness; provided, however, that
if (i) no Event of Default shall have occurred and be continuing hereunder, (ii)
Borrower provides evidence reasonably satisfactory to METLIFE of its ability to
pay all amounts becoming due under the Note during the pendency of any
restoration or repairs to or replacement of the Property, (iii) METLIFE
determines, in its reasonable judgment, that the proceeds of such award are
sufficient to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition and character immediately prior to such taking
(or, if the proceeds of such award are insufficient for such purpose, if
Borrower provides additional sums to METLIFE's satisfaction so that the
aggregate of such sums and the proceeds of such award will be sufficient for
such purpose), and (iv) Borrower provides evidence satisfactory to METLIFE that
none of the tenants (if any) of the Property will terminate their lease
agreements as a result of either the condemnation or taking or the repairs to or
replacement of the Property, the proceeds of such award, together with
additional sums provided by Borrower, shall be placed in a separate account for
the benefit of METLIFE and Borrower to be used to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such taking. All work to be performed in connection
therewith shall be pursuant to a written contract therefor, which contract shall
be subject to the prior approval of METLIFE. To the extent that any funds remain
after the Property has been so restored and repaired, the same shall be applied
against the Indebtedness in such order as METLIFE may elect. To enforce its
rights hereunder, METLIFE shall be entitled to participate in and control any
condemnation proceedings and to be represented therein by counsel of its own
choice, and Borrower will deliver, or cause to be
9
delivered to METLIFE such instruments as may be requested by it from time to
time to permit such participation. In the event METLIFE, as a result of any such
judgment, decree or award, believes that the payment or performance of any of
the Indebtedness is impaired, METLIFE may declare all of the Indebtedness
immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, METLIFE may, at
METLIFE's option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors, if
any, without liability on METLIFE's part and notwithstanding Borrower's breach
of any covenant or agreement of Borrower in this Instrument, extend the time for
payment of the Indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of the Indebtedness, accept an extension or
modification or renewal note or notes therefor, release from the lien of this
Instrument any part of the Property, release other or additional security,
reconvey any part of the Property, consent to any map or plan of the Property,
consent to the granting of any easement, join in any extension or subordination
agreement, and agree in writing with Borrower to modify the rate of interest or
period of amortization of the Note or change the amount of the monthly
installments payable thereunder. Any actions taken by METLIFE pursuant to the
terms of this Section 12 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by this Instrument and
to observe the covenants of Borrower contained herein, shall not affect the
guaranty of any person, corporation, partnership or other entity for payment of
the Indebtedness, and shall not affect the lien or priority of the lien hereof
on the Property. Borrower shall pay METLIFE a service charge, together with such
title insurance premiums and attorneys' fees as may be incurred at METLIFE's
option, for any such action if taken at Borrower's request.
13. FORBEARANCE BY METLIFE NOT A WAIVER. Any forbearance by METLIFE in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by METLIFE of payment of any sum secured by this
Instrument after the due date of such payment shall not be a waiver of METLIFE's
right to either require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by METLIFE shall not
be a waiver of METLIFE's right to accelerate the maturity of the Indebtedness
secured by this Instrument, nor shall METLIFE's receipt of any awards, proceeds
or damages under Sections 5 and 11 hereof operate to cure or waive Borrower's
default in payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is intended
to be a security agreement pursuant to the Uniform Commercial Code for any of
the items specified above as part of the Property which, under applicable law,
may be subject to a security interest pursuant to the Uniform Commercial Code,
and Borrower hereby grants and conveys to METLIFE a first and prior security
interest in all of the Property that constitutes personally, whether now owned
or hereafter acquired. Borrower agrees that METLIFE may file this
10
Instrument, or a reproduction thereof, in the real estate records or other
appropriate index, as a financing statement for any of the items specified above
as part of the Property. Any reproduction of this Instrument or of any other
security agreement or financing statement shall be sufficient as a financing
statement. In addition, Borrower agrees to execute and deliver to METLIFE, upon
METLIFE's request, any financing statements, as well as extensions, renewals and
amendments thereof, and reproductions of this Instrument in such form as METLIFE
may require to perfect a security interest with respect to the foregoing items.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all costs
and expenses of any record searches for financing statements METLIFE may
require. Without the prior written consent of METLIFE, Borrower shall not create
or suffer to be created pursuant to the Uniform Commercial Code any other
security interest in said items, including replacements and additions thereto.
Upon the occurrence of an Event of Default, METLIFE shall have the remedies of a
secured party under the Uniform Commercial Code, and METLIFE may also invoke the
remedies provided in Section 26 of this Instrument as to such items. In
exercising any of said remedies METLIFE may proceed against the items of real
property and any items of personal property specified above separately or
together and in any order whatsoever, without in any way affecting the
availability of METLIFE's remedies under the Uniform Commercial Code or of the
remedies provided in Section 26 of this Instrument. Within ten (10) days
following any request therefor by METLIFE, Borrower shall prepare and deliver to
METLIFE a written inventory specifically listing all of the personal property
covered by the security interest herein granted, which inventory shall be
certified by Borrower as being true, correct, and complete.
15. LEASES OF THE PROPERTY. As of the date hereof, there are no Leases (as
hereinafter defined) affecting the Property; however, if there shall be, in the
future, Borrower shall comply with and observe Borrower's obligations as
landlord under all Leases of the Property or any part thereof. All Leases
hereafter entered into will be in form and substance subject to the approval of
METLIFE, which shall not be unreasonably withheld. All Leases of the Property
shall specifically provide that such Leases are subordinate to this Instrument;
that the tenant attorns to METLIFE, such attornment to be effective upon
METLIFE's acquisition of title to the Property; that the tenant agrees to
execute such further evidences of attornment as METLIFE may from time to time
request; that the attornment of the tenant shall not be terminated by
foreclosure; and that METLIFE may, at METLIFE's option, accept or reject such
attornments. Borrower shall not, without METLIFE's written consent, request or
consent to the subordination of any Lease of all or any part of the Property to
any lien subordinate to this Instrument. If Borrower becomes aware that any
tenant proposes to do, or is doing, any act or thing which may give rise to any
right of set-off against rent, Borrower shall (i) take such steps as shall be
reasonably calculated to prevent the accrual of any right to a set-off against
rent, (ii) immediately notify METLIFE thereof in writing and of the amount of
said set-offs, and (iii) within ten (10) days after such accrual, reimburse the
tenant who shall have acquired such right to set-off or take such other steps as
shall effectively discharge such setoff and as shall assure that rents
11
thereafter due shall continue to be payable without set-off or deduction. Upon
METLIFE's receipt of notice of the occurrence of any default or violation by
Borrower of any of its obligations under the Leases, METLIFE shall have the
immediate right, but not the duty or obligation, without prior written notice to
Borrower or to any third party, to enter upon the Property and to take such
actions as METLIFE may deem necessary to cure the default or violation by
Borrower under the Leases. The costs incurred by METLIFE in taking any such
actions pursuant to this paragraph shall become part of the Indebtedness, shall
bear interest at the rate provided in the Note, and shall be payable by Borrower
to METLIFE on demand. METLIFE shall have no liability to Borrower or to any
third party for any actions taken by METLIFE or not taken pursuant to this
paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
ASSUMPTION. METLIFE may, at its option, declare all sums secured by this
Instrument to be immediately due and payable, and METLIFE may invoke any
remedies permitted by Section 26 of this Instrument, if title to the Property is
changed without the prior written consent of METLIFE, which consent shall be at
METLIFE's sole discretion. Any transfer of any interest in the Property or in
the income therefrom, by sale, lease (except for leases to tenants in the
ordinary course of managing income property which are approved by METLIFE
pursuant to Section 15 of this Instrument), contract, mortgage, deed of trust,
further encumbrance or otherwise (including any such transfers as security for
additional financing of the Property), and any change in the ownership interests
in Borrower (including any change in the ownership interests of any legal
entities which comprise or control Borrower) which change results in the control
of Borrower by any unrelated third party not currently having an ownership
interest in Borrower, except transfers and changes in ownership by devise or
descent, shall be considered a change of title. METLIFE shall have the right to
condition its consent to any proposed sale or transfer described in this Section
17 upon, among other things, METLIFE's approval of the transferee's
creditworthiness and management ability and the transferee's execution, prior to
the sale or transfer, of a written assumption agreement containing such terms as
METLIFE may require, including, if required by METLIFE, the imposition of an
assumption fee of one percent (1%) of the then outstanding balance of the
Indebtedness, except that a transfer of the Property to a limited liability
company will be permitted without payment of such one percent (1%) fee;
provided, however, that Borrower will be responsible for payment of all of
METLIFE's third-party costs, including but not limited to attorney's fees,
recording costs, and title charges. Consent by METLIFE to one transfer of the
Property shall not constitute consent to subsequent transfers or waiver of the
provisions of this Section 17. No transfer by Borrower shall relieve Borrower of
liability for payment of the Indebtedness.
12
18. NOTICE. Except for any notice required under applicable law to be given
in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under the Note shall
be in writing, signed by the party giving such notice, election, demand or
request, and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the United States
of America as any party may designate in writing as provided herein. The date of
receipt of such notice, election, demand or request shall be the earliest of (i)
the date of actual receipt, (ii) three (3) days after the date of mailing by
registered or certified mail, (iii) one (1) day after the date of mailing by
Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt, or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective heirs, successors and assigns of
METLIFE and Borrower, subject to the provisions of Section 17 hereof. If
Borrower is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower's obligations hereunder. In exercising
any rights hereunder or taking any actions provided for herein, METLIFE may act
through its employees, agents or independent contractors as authorized by
METLIFE. The captions and headings of the sections of this Instrument are for
convenience only and are not to be used to interpret or define the provisions
hereof.
20. [INTENTIONALLY DELETED.]
21. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by METLIFE or by any other party,
METLIFE shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. METLIFE shall have
the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument and any party who now or hereafter acquires a security interest
in the Property and who has actual or constructive notice hereof hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower has furnished to METLIFE a Phase I
Environmental Assessment dated October 9, 1995, prepared by Terra Nova, and an
Environmental Questionnaire dated September 8, 1995 (collectively, the
"Report"). Except as disclosed to METLIFE in the Report, Borrower has received
no notification of any kind suggesting that the Property or any adjacent
property is or may be contaminated with any hazardous waste or materials or is
or may be required to be cleaned up in
13
accordance with any applicable law or regulation; and Borrower further
represents and warrants that, except as previously disclosed to METLIFE in
writing, to the best of its knowledge as of the date hereof after due and
diligent inquiry, there are no hazardous waste or materials located in, on or
under the Property or any adjacent property, or incorporated in any
Improvements, nor has the Property or any adjacent property ever been used as a
landfill or a waste disposal site, or a manufacturing, handling, storage,
distribution or disposal facility for hazardous waste or materials. As used
herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. Borrower
agrees to notify METLIFE immediately if Borrower becomes aware of (a) any
material environmental problem or liability with respect to the Property or any
Other Property, or (b) any lien, action or notice resulting from violation of
any of the Applicable Laws. In either such event, at its own cost, Borrower will
(i) obtain and furnish to METLIFE, at METLIFE's request, an environmental audit
or survey from an expert satisfactory to METLIFE with respect to the Property
and (ii) proceed in a timely manner to take all actions which are necessary or
desirable to comply with Applicable Laws, affecting the Property including
removal, containment or any other remedial action required by Applicable Laws.
Following the completion of any such actions, Borrower shall proceed in a timely
manner to restore the Property to its former state of productive use. In the
event that Borrower fails to immediately obtain such audit or inspection,
METLIFE or its agents may perform or obtain such audit or inspection at
Borrower's sole cost and expense. METLIFE may, but is not obligated to, enter
upon the Property and take such actions and incur such costs and expenses to
effect such compliance as it deems advisable to protect its interest in the
Property; and whether or not Borrower has actual knowledge of the existence of
hazardous waste or materials on the Property or any adjacent property as of the
date hereof, Borrower shall reimburse METLIFE as provided in Section 23 below
for the full amount of all costs and expenses incurred by METLIFE prior to
METLIFE acquiring title to the Property through foreclosure or acceptance of a
deed in lieu of foreclosure, in connection with such compliance activities.
Borrower agrees that it will not under any circumstances assert that either this
Instrument or any of the Loan Documents shall put METLIFE in the position of an
owner of the Property prior to any acquisition of the Property by METLIFE. The
rights granted to METLIFE herein and in the other Loan Documents are granted
solely for the protection of METLIFE's lien and security interest covering the
Property, and do not grant to METLIFE the right to control Borrower's actions,
decisions or policies regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10) days
after written demand from METLIFE all sums advanced by
14
METLIFE and all costs and expenses incurred by METLIFE after an Event of Default
in taking any actions pursuant to the Loan Documents, including attorneys' fees
and disbursements, accountants' fees, appraisal and inspection fees and the
costs for title reports and guaranties, together with interest thereon at the
rate applicable under the Note after an Event of Default from the date such
costs were advanced or incurred. All such costs and expenses incurred by
METLIFE, and advances made, shall constitute advances under this Instrument to
protect the Property and shall be secured by and have the same priority as the
lien of this Instrument. If Borrower fails to pay any such advances, costs and
expenses and interest thereon, METLIFE may apply any undisbursed loan proceeds
to pay the same, and, without foreclosing the lien of this Instrument, may at
its option commence an independent action against Borrower for the recovery of
the costs, expenses and/or advances, with interest, together with costs of suit,
costs of title reports and guaranty of title, disbursements of counsel and
reasonable attorneys' fees incurred therein or in any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto METLIFE all right, title and
interest of Borrower in, to and under the Leases of the Property, and all
guaranties, amendments, extensions and renewals of said Leases and any of them,
and all rents, income and profits which may now or hereafter be or become due or
owing under the Leases, and any of them, or on account of the use of the
Property.
Borrower represents, warrants, covenants and agrees with METLIFE that there
are currently no Leases affecting the Property; however, if there shall be in
the future any Leases affecting the Property:
(a) The sole ownership of the entire lessor's interest in the Leases
shall be vested in Borrower, and Borrower shall not, perform any acts or
execute any other instruments which might prevent METLIFE from fully
exercising its rights with respect to the Leases under any of the terms,
covenants and conditions of this Instrument.
(b) The Leases shall be valid and enforceable in accordance with their
terms and shall not be altered, modified, amended, terminated, canceled,
renewed or surrendered except as approved in writing by METLIFE, which
approval shall not be unreasonably withheld. The terms and conditions of
the Leases shall not be waived in any manner whatsoever except as approved
in writing by METLIFE, which approval shall not be unreasonably withheld.
(c) Borrower shall not materially alter the term or the amount of rent
payable under any Lease without prior written notice to METLIFE and
METLIFE's consent, which shall not be unreasonably withheld.
(d) Borrower shall give prompt written notice to METLIFE of any notice
received by Borrower claiming that a default has occurred
15
under any of the Leases on the part of Borrower, together with a complete
copy of any such notice.
(e) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of the leases.
(f) Borrower will not permit any Lease to become subordinate to any lien
other than the lien of this Instrument.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding the
foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower may
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, METLIFE may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. METLIFE shall thereafter
continue to receive and collect all such rents, income and profits, as long as
such default or defaults shall exist, and during the pendency of any foreclosure
proceedings.
Borrower hereby irrevocably appoints METLIFE its true and lawful attorney
with power of substitution and with full power for METLIFE in its own name and
capacity or in the name and capacity of Borrower, from and after service of a
Notice, to demand, collect, receive and give complete acquittances for any and
all rents, income and profits accruing from the Property, either in its own name
or in the name of Borrower or otherwise, which METLIFE may deem necessary or
desirable in order to collect and enforce the payment of the rents, income and
profits of and from the Property. Lessees of the Property are hereby expressly
authorized and directed, following receipt of a Notice from METLIFE, to pay any
and all amounts due Borrower pursuant to the Leases to METLIFE or such nominee
as METLIFE may designate in a writing delivered to and received by such lessees,
and the lessees of the Property are expressly relieved of any and all duty,
liability or obligation to Borrower in respect of all payments so made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, METLIFE is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this Section 24 and
to collect the rents, income and profits assigned hereunder, including the right
of METLIFE or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Borrower
relating thereto, and METLIFE may exclude Borrower, its agents and servants,
wholly therefrom. Borrower hereby grants full power and authority to METLIFE to
exercise all rights, privileges and powers herein granted at any and all times
after service of a Notice, with full power to use and apply all of the rents and
other income herein assigned to the payment of the costs of managing and
operating the Property and of any
16
indebtedness or liability of Borrower to METLIFE, including but not limited
to the payment of taxes, special assessments, insurance premiums, damage
claims, the costs of maintaining, repairing, rebuilding and restoring the
improvements on the Property or of making the same rentable, reasonable
attorneys' fees incurred in connection with the enforcement of this
Instrument, and of principal and interest payments due from Borrower to
METLIFE on the Note and this Instrument, all in such order as METLIFE may
determine. METLIFE shall be under no obligation to exercise or prosecute any
of the rights or claims assigned to it hereunder or to perform or carry out
any of the obligations of the lessor under any of the Leases and does not
assume any of the liabilities in connection with or arising or growing out
of the covenants and agreements of Borrower in the Leases. It is further
understood that the assignment set forth in this Section 24 shall not
operate to place responsibility for the control, care, management or repair
of the Property, or parts thereof, upon METLIFE, nor shall it operate to
make METLIFE liable for the performance of any of the terms and conditions
of any of the Leases, or for any waste of the Property by any lessee under
any of the Leases, or any other person, or for any dangerous or defective
condition of the Property or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to
any lessee, licensee, employee or stranger.
25. DEFAULT. The following shall each constitute an event of default
("Event of Default"):
(a) Failure of or refusal by Borrower to pay any portion of the sums
secured by this Instrument when due, and such failure or refusal shall
continue for a period of ten (10) days after written notice is given to
Borrower by METLIFE specifying such failure; or
(b) Failure of Borrower within the time required by this Instrument to
make any payment for taxes, insurance or for reserves for such payments, or
any other payment necessary to prevent filing of or discharge of any lien,
and such failure shall continue for a period of ten (10) days after written
notice is given to Borrower by METLIFE specifying such failure; or
(c) Failure by Borrower to observe or perform any obligations of
Borrower to METLIFE on or with respect to any transactions, debts,
undertakings or agreements other than the transaction evidenced by the
Note, following the giving of any notice required and/or the expiration of
any applicable period of grace provided thereby; or
(d) Failure of Borrower to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder following the giving of any notice required and/or the
expiration of any applicable period of grace provided thereby, or
commencement of any suit or other action to foreclose any superior liens or
encumbrances; or
(e) Failure by Borrower to observe or perform any of its obligations
under any Leases (if any), following the giving of any
notice required
17
thereunder and/or the expiration of any applicable period of grace provided
thereby; or
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered
into without the prior written consent of METLIFE, except as specifically
allowed under this Instrument, including without limitation creating or
allowing any liens on the Property or leasing any portion of the Property;
or
(g) Filing by Borrower of a voluntary petition in bankruptcy or filing
by Borrower of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or
similar relief for itself under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, or the seeking, consenting to, or acquiescing by
Borrower in the appointment of any trustee, receiver, custodian,
conservator or liquidator for Borrower, any part of the Property, or any of
the income or rents of the Property, or the making by Borrower of any
general assignment for the benefit of creditors, or the inability of or
failure by Borrower to pay its debts generally as they become due, or the
insolvency on a balance sheet basis or business failure of Borrower, or the
making or suffering of a preference within the meaning of federal
bankruptcy law or the making of a fraudulent transfer under applicable
federal or state law, or concealment by Borrower of any of its property in
fraud of creditors, or the imposition of a lien upon any of the property of
Borrower which is not discharged in the manner permitted by Section 4 of
this Instrument, or the giving of notice by Borrower to any governmental
body of insolvency or suspension of operations; or
(h) Filing of a petition against Borrower seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief
under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the
appointment of any trustee, receiver, custodian, conservator or liquidator
of Borrower, of any part of the Property or of any of the income or rents
of the Property, unless such petition shall be dismissed within sixty (60)
days after such filing, but in any event prior to the entry of an order,
judgment or decree approving such petition; or
(i) The institution of any proceeding for the dissolution or
termination of Borrower voluntarily, involuntarily, or by operation of law;
or
(j) A material adverse change occurs in the assets, liabilities or net
worth of Borrower or any of the guarantors (if any) of the indebtedness
evidenced by the Note from the assets, liabilities or net worth of Borrower
or any of the guarantors of the indebtedness evidenced by the Note
previously disclosed to METLIFE; or
18
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of Borrower under the Note, this Instrument, any of the other
Loan Documents or the Certificate and Indemnity Agreement Regarding
Hazardous Substances, shall prove to have been false or misleading in any
material respect; or
(1) Failure of Borrower to observe or perform any other covenant or
condition contained herein and such default shall continue for thirty (30)
days (or such other cure period as may be expressed) after notice is given
to Borrower specifying the nature of the failure or if the default cannot
be cured within such applicable cure period, Borrower fails within such
time to commence and pursue curative action with reasonable diligence or
fails at any time after expiration of such applicable cure period to
continue with reasonable diligence all necessary curative actions;
provided, however, that no notice of default and no opportunity to cure
shall be required with respect to defaults under Section 22 hereof; or
(m) Failure of Borrower to observe or perform any other obligation
under any other Loan Document or the Certificate and Indemnity Regarding
Hazardous Substances when such observance or performance is due, and such
failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable
cure period, Borrower fails within such time to commence and pursue
curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with reasonable
diligence all necessary curative actions; or
(n) Borrower's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant (if
any) of the Property, with respect to any guarantor (if any) of any of
Borrower's obligations in connection with the Indebtedness or with respect
to any guarantor of any tenant's obligations relating to the Property, or
such guarantor dies or becomes incompetent.
26. RIGHTS AND REMEDIES ON DEFAULT.
26.1 Remedies. Upon the occurrence of any Event of Default and at any time
thereafter, METLIFE may exercise any one or more of the following rights and
remedies:
(a) METLIFE may declare all sums secured by this Instrument
immediately due and payable, including any prepayment premium which
Borrower would be required to pay.
(b) METLIFE shall have the right to foreclose this Instrument in
accordance with applicable law.
(c) In the event of any foreclosure, to the extent permitted by
applicable law, METLIFE will be entitled to a judgment which will provide
that if the foreclosure sale proceeds are insufficient to
19
satisfy the judgment, execution may issue for any amount by which the
unpaid balance of the obligations secured by this Instrument exceeds the
net sale proceeds payable to METLIFE.
(d) With respect to all or any part of the Property that constitutes
personally, METLIFE shall have all rights and remedies of secured party
under the Uniform Commercial Code.
(e) METLIFE shall have the right to have a receiver appointed to take
possession of any or all of the Property, with the power to protect and
preserve the Property, to operate the Property preceding foreclosure or
sale, to collect all the rents and revenues from the Property and apply the
proceeds, over and above cost of the receivership, against the sums due
under this Instrument, and to exercise all of the rights with respect to
the Property described in Section 24 above. The receiver may serve without
bond if permitted by law. METLIFE's right to the appointment of a receiver
shall exist whether or not apparent value of the Property exceeds the sums
due under this Instrument by a substantial amount. Employment by METLIFE
shall not disqualify a person from serving as a receiver.
(f) In the event Borrower remains in possession of the Property after
the Property is sold as provided above or METLIFE otherwise becomes
entitled to possession of the Property upon default of Borrower, Borrower
shall become a tenant at will of METLIFE or the purchaser of the Property
and shall pay a reasonable rental for use of the Property while in
Borrower's possession.
(g) METLIFE shall have any other right or remedy provided in this
Instrument, the Note, or any other Loan Document or instrument delivered by
Borrower in connection therewith, or available at law, in equity or
otherwise.
(h) METLIFE shall have all the rights and remedies set forth in
Sections 23 and 24.
26.2 Sale of the Property. In exercising its rights and
remedies, METLIFE may, at METLIFE's sole discretion, cause all or any part of
the Property to be sold as a whole or in parcels, and certain portions of the
Property may be sold without selling other portions. METLIFE may bid at any
public sale on all or any portion of the Property.
26.3 Notice of Sale. [DELETED.]
26.4 Waiver; Election of Remedies. A waiver by either party of a breach of
a provision of this Instrument shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict compliance with that provision or any
other provision. Election by METLIFE to pursue any remedy shall not exclude
pursuit of any other remedy, and all remedies of METLIFE under this Instrument
are cumulative and not exclusive. An election to make expenditures or take
action to perform an obligation of Borrower shall not affect METLIFE's right to
declare a default and exercise its remedies under this Instrument.
20
27. SATISFACTION OF MORTGAGE. Upon payment of all sums secured by this
Instrument, METLIFE shall execute a satisfaction of this Instrument and shall
surrender this Instrument and all notes evidencing Indebtedness secured by this
Instrument to the person or persona legally entitled thereto. Such person or
persons shall pay METLIFE's Pa costs incurred in connection with satisfaction of
this Instrument.
28. FUTURE ADVANCES. Upon request of Borrower, METLIFE, at METLIFE's option
so long as this Instrument secures Indebtedness held by METLIFE, may make Future
Advances to Borrower. Such Future Advances, with interest thereon, shall be
secured by this Instrument when evidenced by promissory notes stating that said
notes are secured hereby.
29. IMPOSITION OF TAX BY STATE.
29.1 State Taxes Covered. (This Section does not have any reference to
METLIFE'S income taxes, state, federal or local.) The following constitute state
taxes to which this Section applies:
(a) A specific tax upon mortgages or upon all or any part of the
indebtedness secured by a mortgage.
(b) A specific tax on a mortgagor which the taxpayer is authorized or
required to deduct from payments on the indebtedness secured by a mortgage.
(c) A tax on a mortgage chargeable against the mortgagee or the holder
of the note secured.
(d) A specific tax on all or any portion of the indebtedness or on
payments of principal and interest made by a mortgagor.
29.2 Remedies. If any state tax to which this Section applies is enacted
subsequent to the date of this Instrument, this shall have the same effect
as an Event of Default, and METLIFE may exercise any or all of the remedies
available to it unless the following conditions are met:
(a) Borrower may lawfully pay the tax or charge imposed by state tax,
and
(b) Borrower pays the tax or charge within thirty (30) days after
notice from METLIFE that the tax has been levied.
30. ATTORNEYS' FEES. In the event suit or action is instituted to enforce
or interpret any of the terms of this Instrument (including without limitation
efforts to modify or vacate any automatic stay or injunction), the prevailing
party shall be entitled to recover all expenses reasonably incurred at, before
and after trial and on appeal whether or not taxable as costs, or in any
bankruptcy proceeding including, without limitation, attorneys' fees, witness
fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining
21
title reports, surveyor reports, and title insurance, incurred by METLIFE
that are necessary at any time in METLIFE's reasonable opinion for the
protection of its interest or enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest from the date
of expenditure until repaid at the interest rate as provided in the Note.
The term "attorneys' fees" as used in the Loan Documents shall be deemed to
mean such fees as are reasonable and are actually incurred.
31. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by the
law of the State of New Jersey applicable to contracts made and to be performed
therein (excluding choice-of-law principles). In the event that any provision or
clause of this Instrument or the Note conflicts with applicable law, such
conflict shall not affect other provisions of this Instrument or the Note which
can be given effect without the conflicting provision, and to this end the
provisions of this Instrument and the Note are declared to be severable.
32. TIME OF ESSENCE. Time is of the essence of this Instrument.
33. CHANGES IN WRITING. This Instrument and any of its terms may only be
changed, waived, discharged or terminated by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought. Any agreement subsequently made by Borrower or METLIFE
relating to this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
34. NO OFFSET. Borrower's obligation to make payments and perform all
obligations, covenants and warranties under this Instrument and under the Note
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against METLIFE or any entity participating in
making the loan secured hereby. The foregoing provisions of this section,
however, do not constitute a waiver of any claim or demand which Borrower or any
guarantor may have in damages or otherwise against METLIFE or any other person,
or preclude Borrower from maintaining a separate action thereon; provided,
however, that Borrower waives any right it may have at law or in equity to
consolidate such separate action with any action or proceeding brought by
METLIFE.
35. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained herein or
in any of the Loan Documents to the contrary, in no event shall METLIFE be
entitled to receive interest on the loan secured by this Instrument (the
"Loan") in amounts which, when added to all of the other interest charged,
paid to or received by METLIFE on the Loan, causes the rate of interest on
the Loan to exceed the highest lawful rate. Borrower and METLIFE intend to
comply with the applicable law governing the highest lawful rate and the
maximum amount of interest payable on or in connection with the Loan. If the
applicable law is ever judicially interpreted so as to render usurious any
amount called for under the Loan Documents, or contracted for, charged,
taken, reserved or
22
received with respect to the Loan, or if acceleration of the final maturity
date of the Loan or if any prepayment by Borrower results in Borrower having
paid or demand having been made on Borrower to pay, any interest in excess
of the amount permitted by applicable law, then all excess amounts
theretofore collected by METLIFE shall be credited on the principal balance
of the Note (or, if the Note has been or would thereby be paid in full, such
excess amounts shall be refunded to Borrower), and the provisions of the
Note, this Instrument and any demand on Borrower shall immediately be deemed
reformed and the amounts thereafter collectible thereunder and hereunder
shall be reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for thereunder and
hereunder. The right to accelerate the final maturity date of the Loan does
not include the right to accelerate any interest which has not otherwise
accrued on the date of such acceleration, and METLIFE does not intend to
collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to METLIFE for the use, forbearance or detention of the
Loan shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread through the full term of the Loan until
payment in full so that the rate or amount of interest on account of the
Loan does not exceed the applicable usury ceiling. By execution of this
Instrument, Borrower acknowledges that it believes the Loan to be
nonusurious and agrees that if, at any time, Borrower should have reason to
believe that the Loan is in fact usurious, it will give METLIFE written
notice of its belief and the reasons why Borrower believes the Loan to be
usurious, and Borrower agrees that METLIFE shall have ninety (90) days
following its receipt of such written notice in which to make appropriate
refund or other adjustment in order to correct such condition if it in fact
exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY
THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE
THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
BORROWER ACKNOWLEDGES RECEIPT OF A TRUE COPY HEREOF,
PROVIDED WITHOUT CHARGE.
23
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused the
same to be executed by its representatives thereunto duly authorized.
JEVIC TRANSPORTATION, INC.,
a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Titles: SVP/CFO
-----------------------------------
Attest: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Treasurer
-----------------------------------
[CORPORATE SEAL]
Exhibits:
Exhibit A - Description of Property
Schedule 1 - Permitted Exceptions
24
STATE OF NEW JERSEY )
) ss.
COUNTY OF CAMDEN )
ACKNOWLEDGEMENT
PERSONALLY before me, the undersigned, a Notary Public in and for said
State, appeared Xxxxx X. Xxxxxxxxxxx and Xxxxxxx X. Xxxxxxxx, to be well-known
and known by me [or proven upon basis of credible evidence] to be the [Vice]
President, and the Treasurer, respectively, of Jevic Transportation, Inc., a New
Jersey corporation, the corporation that executed the within instrument, and
known to me to be the persons whose signatures appear on the within instrument
on behalf of such corporation therein named, and acknowledged to me that they
executed such instrument as their own free act and deed and that such
corporation executed the within instrument as its own free act and deed,
pursuant to its by-laws or a resolution of its board of directors for the uses
and purposes set forth therein.
WITNESS my hand and official seal this 1st day of November, 1995.
/s/ Xxxxxx Xxx Xxxxxxx
---------------------------------------
Notary Public
[SEAL]
Xxxxxx Xxx Xxxxxxx
A Notary Public of New Jersey
My Commission Expires August 19, 1999
25
EXHIBIT A
ALL THAT CERTAIN land and premises situate in the TOWNSHIP of DELANCO,
County of BURLINGTON and State of New Jersey, bounded and described as follows:
TRACT # I
ALL THAT CERTAIN land and premises situate in the Township of Delanco,
County of Burlington and State of New Jersey, being more particularly described
as follows:
BEGINNING at a point in the Northeasterly Right of Way line of Creek Road
(33 feet wide), said beginning point also being in the Southwesterly corner of
Lot 13F in Block 2000 as shown on the official tax map of Delanco Township;
thence
(1) along the Southeasterly line of said Xxx 00X, Xxxxx 00 degrees 55
minutes 00 seconds East a distance of 497.27 feet to a point; thence
(2) along the Northeasterly line of Lots 3F, 13E, 13D and 13A in said Block
2000, North 24 degrees 55 minutes 30 seconds West a distance of 1060.64 feet to
a point in the Southeasterly line of Lot 9 in Block 2000 aforesaid; thence
(3) partially along the Southeasterly line of said Lot 9 and continuing in
a straight line along the Southeasterly line of Lots 10 and 11B and partially
along the Southeasterly line of Lot 11 in said Block 2000, as shown on aforesaid
tax map, North 65 degrees 00 minutes 53 seconds East a distance of 803.06 feet
to a point in the said Southeasterly line of Lot 11; thence
(4) along the Southwesterly line of Lot 13C in Block 2000, as shown on said
tax map, South 24 degrees 59 minutes 00 seconds East a distance of 1309.14 feet
to a point; thence
(5) partially along the Southeasterly line of said Xxx 00X, Xxxxx 00
degrees 28 minutes 00 seconds East a distance of 5.91 feet to a point therein;
thence
(6) along the Northwesterly line of Lot 13H-2 and partially along the
Northwesterly line of Lot 13H-1 in Block 2000, as shown on said tax map, South
24 degrees 37 minutes 55 seconds West a distance of 718.06 feet to an angle
point therein; thence
(7) continuing along the Northwesterly line of said Lot 13H-I South 43
degrees 55 minutes 00 seconds West a distance of 485.73 feet to a point in the
aforementioned Northeasterly right of way. Line of Creek Road; thence
(8) along said right xx xxx xxxx, Xxxxx 00 degrees 05 minutes 00 seconds
West a distance of 760.71 feet to the point and place of beginning.
BEING Tax Block 2000, Lot 13.03 on the tax map.
(Continued)
(Continued)
TRACT #2:
ALL THAT CERTAIN land and premises situate in the Township of Delanco,
County of Burlington and State of New Jersey, being more particularly described
as follows:
BEGINNING at a point in the third course of Tract No. 3 described above,
said point being 255.66 feet Southwesterly along said third course from its
point of termination; thence
(1) along said third course in reverse, South 65 degrees 00 minutes 53
seconds West a distance of 51.04 feet to a point therein; thence
(2) along the Easterly line of Lot 9 in Block 2000, as shown on the
official tax map of Delanco Township, North 13 degrees 24 minutes 07 seconds
West a distance of 521.15 feet to a point in the Southerly right of way line of
Coopertown Road (33 feet wide); thence
(3) along said right of way line of Coopertown Road, South 77 degrees 42
minutes 37 seconds East a distance of 55.49 feet to a point therein; thence
(4) along the Westerly line of Lot 11 in Block 2000, as shown on said tax
map parallel to the second course herein and distant 50.00 feet Easterly as
measured at right angles therefrom, South 13 degrees 24 minutes 07 seconds East
a distance of 486.84 feet to the point of beginning.
BEING Lot 11.02, Block 2000 on the tax map.
Loan No: 5908795-001
SCHEDULE 1
(600 Creek Road, Delanco, New Jersey)
Permitted Exceptions:
1. Subject to a 100 foot wide side and rear and a 150 foot front
setback line as shown on Subdivision Plat Xxx 000 Xxxxx 0000 made by
Xxxxxx Engineering Company; dated 4/24/85. Affects Tract 1.
2. Right of Way as contained in Deed Book 4290, page 319, Burlington
County, N.J., records. Affects Tract 1.
